Texas Law Requiring Sanctuary Cities to Cooperate with ICE Detainer Requests Does Not Facially Violate Constitution

Recently, the Court of Appeals for the Fifth Circuit ruled that most of Texas’s immigration enforcement legislation, Senate Bill 4, can remain in effect after hearing constitutional challenges from various Texas cities, counties, and officials.

In May 2017, Texas enacted Senate Bill 4 (“SB4”). Codified at Texas Government Code § 752.053(a)-(b), SB4 is a Texas law that forbids “sanctuary city” policies throughout the state of Texas and requires local officers to comply with Immigration and Customs Enforcement (“ICE”) detainer requests. Subsection (a)(1) provides that a local entity may not “adopt, enforce, or endorse a policy under which [it] prohibits or materially limits” immigration enforcement, and subsection (a)(2) prohibits any “pattern or practice” that similarly frustrates enforcement. Subsection (b) enumerates examples of immigration-enforcement activities that a local entity may not “prohibit or materially limit.”

Codified at Texas Code of Criminal Procedure article 2.251, SB4’s ICE-detainer mandate requires law enforcement agencies to comply with detainer requests submitted by ICE. An ICE detainer is a written request to state or local officials, asking them (1) to notify the Department of Homeland Security (“DHS”) as soon as practicable before an alien is released and (2) to main custody of the alien for up to 48 hours beyond the preexisting release date.

ICE must make this request using Form I-247A, and the form must be accompanied by a signed administrative warrant. The form states that DHS has determined there is probable cause that the subject of the request is a removable alien, and ICE officers check a box indicating their basis for probable cause. Under article 2.251(a), the mandate requires law enforcement agencies to comply with and honor ICE’s requests. It also requires that the individual in custody be notified he or she is being held pursuant to an ICE detainer.

Before SB4 could go into effect, several Texas cities, counties, and local officials (“plaintiffs”) challenged SB4 and alleged various constitutional violations. These plaintiffs alleged SB4 is preempted by federal immigration law, violates the First and Fourteenth Amendments through its “endorse” prohibition, violates the Fourth Amendment throughout its ICE-detainer mandate, and that the phrase “materially limits” is unconstitutionally vague under the Fourteenth Amendment.

The district court issued a preliminary injunction on several of SB4’s provisions. Notably, the district court held that the ICE-detainer mandate violates the Fourth Amendment because it is not reasonable for local officials to detain persons based on probable cause removability. Texas appealed the injunction and the plaintiffs cross-appealed the district court’s refusal to issue a broader injunction.

To be entitled to a preliminary injunction, the applicants must show (1) a substantial likelihood they will prevail on the merits, (2) a substantial threat they will suffer irreparable injury if the injunction is not granted, (3) their substantial injury outweighs the threatened harm to the party whom they seek to enjoin, and (4) granting the preliminary injunction will not disserve the public interest. The court of appeals reviews preliminary injunctions for abuse of discretion, reviewing findings of fact for clear error and conclusions of law de novo.

With respect to the ICE-detainer mandate, the Court of Appeals for the Fifth Circuit first addressed whether the plaintiffs had standing to challenge the mandate. The court found that the plaintiffs had sufficient injury to support standing – they would face criminal penalties in addition to civil fines and expulsion from office if they disobey the ICE-detainer mandate. The court of appeals then determined that the injury claimed by the plaintiffs stems directly from the mandate and judicial invalidation of the mandate would remove the plaintiff’s concerns.

Having concluded that the plaintiffs had standing, the court of appeals next considered the plaintiffs’ claim that the ICE-detainer mandate violates the Fourth Amendment. Typically, a constitutional seizure of a criminal defendant must be supported by probable cause. However, this case did not involve whether probable cause existed in a particular instance – it is a pre-enforcement facial challenge. A pre-enforcement facial challenge requires the plaintiffs to demonstrate that the mandate is unconstitutional in all of its applications. Here, the court held that the plaintiffs did not satisfy this standard.

The court stated that federal immigration officers may seize aliens based on an administrative warrant attesting to probable cause of removability. Form I-247A requires an ICE officer to certify that probable cause of removability exists. Therefore, the ICE-detainer request proves probable cause of removability in every instance. It provides the required communication between the ICE officer’s knowledge and local officials, even if the local officials are unaware of the specific facts that establish probable cause.

Plaintiffs contended that local officers may only arrest individuals if there is probable cause of criminality. The court disagreed, stating that civil removal proceedings necessarily contemplate detention absent proof of criminality. The plaintiffs then argued that no state law authorizes local officers to conduct seizures based on probable cause of removability. The court again disagreed with the plaintiffs, and stated that the mandate authorizes and requires state officers to carry out federal detention requests.

The plaintiffs also argued that the Fourth Amendment is not satisfied when officers unthinkingly accept an agency’s conclusions without taking into account facts that could dissipate probable cause. The plaintiffs cited cases from other circuit courts, including the Fourth Circuit and Ninth Circuit, and contended that these cases indicate that the detainer mandate is facially invalid. The court of appeals found the plaintiffs’ argument misguided and stated that it is the ICE agent who makes the underlying removability determination. The court of appeals stated that none of the cases cited by the plaintiffs involved a federal request for assistance before the seizure. The ICE-detainer mandate always requires a predicate federal request before local officers detain aliens. Moreover, the court noted that at least one other circuit court has found this type of compliance valid – the Eighth Circuit.

Accordingly, the court of appeals determined that the plaintiffs failed to show that the mandate violates the Fourth Amendment. With respect to the other challenges brought by the plaintiffs, the Fifth Circuit concluded that the plaintiffs failed to demonstrate they were likely to succeed on the merits except as to the enforcement of § 752.053(a)(1)’s “endorse” provision against elected officials.

The court left open the possibility that under SB4 seizures may occur where probable cause is lacking. Should violations occur in the way the law is implemented, challenges may be brought on those grounds.

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